U.S. Opposes POWs' Search for Justice

After the Philippines fell to the Japanese in 1942, U.S. Army Capt. Mel Rosen and 70,000 other U.S. and Filipino soldiers were forced to trudge 65 miles in tropical heat with no food or water — the notorious "Bataan Death March." Up to 10,000 died along the way.

Rosen survived the march, but his suffering at the hands of the Japanese was far from over. Forced to farm and cut timber under harsh conditions, he eventually weighed only 88 pounds.

Now 83 and living in Falls Church, Va., Rosen is still fighting battles from World War II — even on the 60th anniversary of the Bataan march. Rosen, who retired as a colonel, is co-lead plaintiff in a $1 trillion class-action lawsuit filed in federal court in Chicago against Japan on behalf of all U.S. citizens injured or killed by the Japanese during World War II.

His is one of a growing number of lawsuits in U.S. and Japanese courts seeking restitution from Japan or Japanese corporations for wartime atrocities such as slave labor, just as Holocaust survivors have made Germany and German companies pay.

This time, Rosen faces a surprise adversary he risked his life to defend: the U.S. government, which has mobilized a cadre of lawyers and diplomats to work against Japanese reparations lawsuits in court, despite its support of Holocaust claims. The 1951 peace treaty that ended the war with Japan precludes reparations, the U.S. government argues.

Rosen, now vice president of the veterans group Center for Internee Rights Inc., and other former prisoners of war are bewildered at their government's resolve against their cause.

"The [State Department] fought tooth and nail to help the people who suffered at the hands of the Nazis," Rosen said. "In our case, it would help us if they just shut up. In fact, they're fighting tooth and nail for the Japanese."

U.S.: ‘We Signed the Treaty’

The former POWs' efforts carry a special urgency as the ranks of survivors continues to dwindle.

"It's a very black situation for the U.S. government. They don't want to talk about it, they just want to bury it," said Anthony D'Amato, Rosen's lawyer and a Northwestern University law professor. "[World War II survivors] die off every day … when they die off, it will go away."

The U.S. government says it has history on his side. At a ceremony marking the 50th anniversary of signing of the treaty with Japan last fall, Secretary of State Colin Powell said the reparations issue was long settled. "That's all behind us now," he said.

Citing the 1951 treaty, the State Department has filed motions to block lawsuits against Japanese companies and is expected to take similar action in the Rosen case against Japan. Last month, Chinese citizens filed suit against Japan and two major construction firms seeking compensation for slave labor during World War II. China was not a signatory to the 1951 treaty.

So far, the U.S. courts have sided with the government against the POWs, but legislation that would allow survivors to sue Japanese corporations was introduced last year in Congress and is expected to be revived in the coming weeks.

The State Department opposes the legislation and all efforts to exact reparations from the Japanese.

"The U.S. made a solemn treaty commitment and we really for our own reasons decided to put an end to this back into 1952," said Jim Hergen, assistant legal adviser for East Asia and Pacific affairs at the State Department. "We have nothing against the POWs."

Protecting a Critical Ally

David Casey, a California attorney who represents POWs suing Japanese companies including Mitsui and Mitsubishi, says he has a hard time explaining to his clients why the U.S. government won't even let them sue Japanese companies.

"These men sat in company camps for three years, 40 percent died, and they are heroes for our country, and to have the State Department coming against them has been outrageous and extremely disappointing," Casey said.

The U.S. government's actions on Japan's behalf have been explained as a show of support for a critical global economic power and for a political ally standing with the United States in its pursuit of anti-Western terrorists.

"In a way, the United States should be on our side, but the reason they're not doing that is they see Japan as an ally so they don't want to bother," D'Amato said. "However, I think American veterans deserve better than that."

With the help of a scholar poking around in World War II-era archives, the POWs are arguing that their right to sue was not actually waived by the 1951 treaty.

Steven Clemons of the New America Foundation, a Washington think tank, says he uncovered documents from a recently declassified diplomatic archive showing that Burma and other countries negotiated the rights for their citizens to sue Japan. The 1951 treaty included a clause that if any nation cut a better deal, then citizens from other countries could also take advantage of those terms.

Does Japan Have Amnesia?

Clemons sees a coverup. The United States has hidden critical documents, rejected freedom of information requests and lied to protect Japan, Clemons said. Particularly maddening to Clemons, though, is the U.S. role in preventing what he calls a "historical transparency" of the World War II era.

"What everyone wants to see Japan do is to get into a position of debating its past. It trivializes the POW suits to make it all look like it's about money or claims," he said. "The State Department has been incredibly complicit in creating the amnesia that Japan is dealing with today."

Clemons' work has influenced some of the claims against Japan and companies there, including the Rosen lawsuit.

But the State Department's Hergen says Clemons' allegations against the United States are bogus, and that documents the scholar claims were only recently declassified were actually available, if difficult for some people to find.

Further, he said, the 1951 treaty never sought to eliminate any possible reparations from Japan — the treaty in itself was devoted to making Japan pay for its aggression during the war.

"It's very disturbing to someone who really studies this stuff closely," Hergen said. "It [Clemons' allegations] does portray us as a government conspiring against its nationals. I think it's irresponsible."